You may find the following types of mistakes in your commons registers:

boundary lines of commons or greens drawn in the wrong place by the registration authority

commons or greens that should have been registered but weren’t

greens that were wrongly registered as common land

As part of your duty to review your registers, you should search the Defra common land database
(MS Excel Spreadsheet, 6.61MB)
for commons and greens made under Part 1 of the Commons Act 1899 or schemes of regulation for commons and greens made under the Metropolitan Commons Acts 1866 to 1898.

Also check that your registers match the areas of common land and greens defined in any current:

If you receive any objections to an application or a proposal from anyone with a legal interest in the land (such as an owner, rights holder, occupier or mortgage lender), you must refer the application to the Planning Inspectorate. You must also refer applications and proposals if you have an interest in the outcome to the extent that it could make your decision seem biased (eg if your authority owns the land and plans to develop it so doesn’t want it registered).

Register statutory common land or greens

as common land - land recognised by law as common land that wasn’t finally registered (meaning that the provisional registration was confirmed) under the Commons Registration Act 1965

as a green - land that had been, and still was on 31 July 1970, allotted to local people for recreation but wasn’t finally registered under the Commons Act 1965

Any land in an application or a proposal under the Commons Act 2006, Schedule 2, paragraphs 2 or 3 must still be legally recognised as a common or a green by the relevant piece of law - the legislation that created that particular common or green can’t have been revoked.

If you register a piece of land under Schedule 2, paragraphs 2 or 3 it won’t create new rights of common. But if it’s land that’s added to an existing common that has rights over it, then the rights can be used over the new part of the common.

You can’t accept applications or make proposals for land covered by a building or within its curtilage (the land that ‘belongs’ to a building) unless the owner agrees. The meaning of ‘curtilage’ isn’t clearly defined. In recent judgments, common ownership seems to be less important than current use - for example, a basement area, driveway, passageway, garden and yard. A whole common or green is unlikely to be the curtilage of a building, but if a house has a physical enclosure around it (eg a wall or a fence), then the whole area within that enclosure (except the house) could be considered to be curtilage.

The deadlines for applications and proposals are:

31 December 2020 for pioneer authorities

15 March 2027 for 2014 authorities

You must put up a notice with details of the application or proposal at or near an obvious entrance to the site.

Evidence you need

To register common land or greens that should previously have been registered you need:

the land is open, uncultivated and unoccupied at the date of the application or proposal

the land hasn’t been registered as common land or a green

But land is only eligible to be registered as waste land if it had been provisionally registered as common land under the Commons Registration Act 1965 but it was cancelled for any of the following reasons:

the Commons Commissioner dismissed it because the land was no longer part of a manor

the Commons Commissioner dismissed it because the land wasn’t subject to rights of common, but the Commissioner didn’t consider whether the land was waste land of a manor

the applicant withdrew or agreed to withdraw the application, whether or not it was referred to a Commons Commissioner

Check that waste land is open, uncultivated and unoccupied

Waste land is legally defined as land that’s open, uncultivated and unoccupied.

What is open land

Open land means land with no physical barriers that prevent access to that land.

Fencing that sets the boundaries of ownership can be open land, especially if the land can still be accessed on foot.

You’ll need to check what barriers are for and whether they’re temporary or permanent.

Ignore fencing on adjacent land, even if the common is completely surrounded by it - fencing is only relevant on land that’s part of the application.

What is unoccupied land

Whether land is occupied or unoccupied will depend on whether the land is used by the occupant, and if it is, how much.

Unoccupied land means that nobody is physically using the land in a way that prevents other people from using it. The High Court has commented that while a golf course had rights over a piece of land, the rights did not amount to occupation (see R v Doncaster Metropolitan Borough Council).

Land won’t automatically be considered occupied because it’s subject to a tenancy, lease or licence whose sole purpose is to allow grazing on the land.

Land may be considered as occupied if it’s been physically improved by tenants, eg cultivating and reseeding moorland only for the tenants’ use and benefit.

What is uncultivated land

Whether land is cultivated or uncultivated land depends on what the land’s used for and how much it’s used. For example, intensive arable cultivation would count as cultivated land but grass cutting would not.

Contact Natural England to check if the land is subject to an agri-environment scheme agreement. Check the terms of the agreement - schemes may require cultivation of the land either by physical or chemical means, eg ploughing, harrowing, fertilisers.

You usually can’t prove for certain that land was part of a manor, but you should be able to show that land probably was or still is part of a manor.

If you register waste land of a manor it won’t create new rights of common, but if it’s land that’s added to an existing common with rights over it, then the existing rights can be used over the new part of the common.

The deadlines for applications are:

31 December 2020 for pioneer authorities

15 March 2027 for 2014 authorities

You must put up a notice with details of the application or proposal at or near an obvious entrance to the site.

Amend the register

Use model entry 17 as a reference if you’re registering an extension to an existing common or green. Use model entry 18 as a reference if you’re registering a new common or green.

Register a town or village green wrongly registered as common land

Some greens were wrongly registered as common land because the land had rights of common over it, but greens can have rights of common over them. Only pioneer and 2014 commons registration authorities can accept applications or make proposals to transfer these to the register of town and village greens.

The deadlines for applications are:

31 December 2020 for pioneer authorities

15 March 2027 for 2014 authorities

You must put up a notice with details of the application or proposal at or near an obvious entrance to the site.

Evidence you need

To register town or village greens wrongly registered as common land you need:

evidence that the land was a town or village green immediately before it was provisionally registered as common land - this can be formal evidence, such as an inclosure award or order of exchange, or it could be by 20 years’ use as of right, or if it was in customary use as a green

Amend the register

Use model entry 19 to amend the register. Remove the land and any rights of common from the commons register and record it as a new register unit in the greens register. Commoners will be able to use their rights on the green.

Deregister buildings wrongly registered as common land or town or village green

the land was covered by a building or belonged to a building on the date of the provisional registration

the provisional registration became final

the land has been at all times, and still is, covered by a building or belongs to a building - though it doesn’t have to be the same building or even a building that was legally built

You can’t accept applications or make proposals for land covered by a building or within its curtilage unless the owner agrees.

The meaning of ‘curtilage’ isn’t clearly defined. In recent judgments, common ownership seems to be less important than current use - for example, a basement area, driveway, passageway, garden and yard. A whole common or green is unlikely to be the curtilage of a building, but if a house has a physical enclosure around it (eg a wall or a fence), then the whole area within that enclosure (except the house) could be considered to be curtilage.

The deadlines for applications and proposals are:

31 December 2020 for pioneer authorities

15 March 2027 for 1965 and 2014 authorities

You must put up a notice with details of the application or proposal at or near an obvious entrance to the site.

Deregister other land wrongly registered as common land

the provisional registration became final without being referred to a Commons Commissioner

immediately before its provisional registration the land wasn’t subject to rights of common, or waste land of a manor, or a green (within the original meaning under the Commons Registration Act 1965), or land described in section 11 of the Inclosure Act 1845

Evidence you need

an Ordnance Survey map of the land at the correct scale - at least 1:10,560 for moorland and 1:2,500 for other land

evidence that the land was provisionally registered as a town or village green

evidence that the provisional registration became final without being referred to a Commons Commissioner

evidence that the provisional registration became final

You also need evidence that immediately before provisional registration the land wasn’t:

common land, meaning it wasn’t subject to rights of common or waste land of a manor

a town or village green, meaning that during the 20 years before its provisional registration it was physically unusable for sports and pastimes (eg because of buildings, cultivation or fencing), or it hadn’t been allotted as a green under an enactment

Amend the register

When costs are awarded

If you refer an application under Schedule 2 to the Planning Inspectorate and they hold a public inquiry (but not a hearing), then the inspector responsible for the inquiry may award costs to the applicant or to an objector (who takes part in the inquiry) if:

a claim is made for an award of costs

applicants, any objectors or registration authorities taking part in the public inquiry behave unreasonably, causing significant expense that wouldn’t otherwise have been incurred

Examples of unreasonable behaviour include:

late introduction of evidence

the adjournment (putting off ) or prolongment of an inquiry

an applicant insisting on an inquiry and failing to present a reasonable case in support of the application

Section 19 corrections

Section 19 allows for applications and proposals to correct certain types of mistake in the registers of common land and town and village greens.

1965 authorities

1965 authorities can only correct the registers if the registration authority made a mistake when it made or amended an entry in the register - for example, if a registration authority recorded the boundary of a common in a way that didn’t match the way it was shown in the application; read Section 19(2)(a). But if the authority recorded all the information in an application then it doesn’t qualify as a local authority’s mistake

Pioneer and 2014 authorities

Pioneer and 2014 authorities can make all of the following corrections:

if the registration authority made a mistake when it made or amended an entry in the register - for example, if a registration authority recorded the boundary of a common in a way that didn’t match the way it was shown in the application - read Section 19(2)(a). But if the authority recorded all the information in an application then it doesn’t qualify as a local authority’s mistake

to correct other mistakes provided they don’t affect the extent of land registered or what can be done by virtue of a right of common - for example, if the applicant wrongly defined the boundary of the land to which a right of common is attached, or stated that the right was only usable over part of the common when it was actually usable over the whole common - read Section 19(2)(b)

to remove duplicate entries - these mistakes tended to happen when the landowner and the tenant made separate applications to record the same right of common - read Section 19(2)(c)

to update the name and address of any person in an entry - this will usually relate to a change to either the name or address of the owner of a right of common in gross, for example through marriage or moving - read Section 19(2)(d). But it can’t be used to record a change in ownership of the right - applicants must use form CA6 instead

if the boundary of a common or green is extended or reduced due to a natural change in the shape of a body of water - read Section 19(2)(e)

Given the broad scope of Section 19 corrections, make sure you advertise applications to everyone with a potential interest in them.

If the application would add or remove land, you must put up a site notice with details of the application or proposal at or near an obvious entrance to the site.

There are no deadlines for these types of application. The deadline for proposals is 31 December 2020 for pioneers and 15 March 2027 for 2014 authorities. 1965 authorities can’t make proposals.

The High Court may order an authority to amend either register if:

any entry or any information relating to an entry was included due to fraud

it would be fair to amend the register

When you can’t make Section 19 corrections

You can’t correct mistakes if it would be unfair to. For example, someone may have bought land thinking it wasn’t a common or a green because it wasn’t in the register. But the land turns out to be a common or a green that your registration authority left out of the register by mistake. You must balance the needs of those who own the land with those who want to correct the register.

Evidence you need

if relevant, an Ordnance Survey map of the land at the correct scale - at least 1:10,560 for moorland and 1:2,500 for other land

a statement from the applicant to say which type of correction under Sections 19(2)(a) to (e) they want to make

the mistake to be corrected

details of the correction to be made

You must refer an application or proposal to the Planning Inspectorate if it would add or remove land from the register or correct the numbers of rights in an entry and the application receives any objections from anyone with a legal interest in the land (such as owners, tenants, rights holders or mortgage lenders). You must also refer an application or a proposal to the Planning Inspectorate if your authority has an interest in the outcome to the extent that there would be no confidence in your authority’s ability to make an unbiased decision.